Superior Court of California 

County of Los Angeles – West District  

Beverly Hills Courthouse / Department 205 

 

 

MOVING PARTY: Plaintiff Santander Consumer USA, Inc. 

 

RESPONDING PARTY: Defendant Ellen Karen Lang 

 

BACKGROUND 

This action arises from breach of a car sales contract.  Plaintiff Santander Consumer USA Inc. dba Chrysler Capital (“Chrysler”) is the assignor of a contract (the “Contract”) with Defendant Ellen Karen Lang to purchase a 2019 Jeep Cherokee VIN No. 1C4PJLLB7KD247781 (the “Car”).  The Contract is in default, with a balance due and owing as of the filing of this action in the sum of $29,806.02 together with other charges under the contract.  Pursuant to the Contract, upon a default, Plaintiff has the right to immediate possession of the Car.     

This hearing is on Plaintiff’s application for pre-trial writ of possession.  Plaintiff argues that it has shown a “probable validity” that it is entitled to possession of the car because of Defendant’s default on the Contract, and therefore a writ of possession must issue.  No opposition was filed as of the posting of this tentative ruling.   

LEGAL STANDARD 

Code Civ. Proc. § 512.010 subd. (b) requires that the application for writ of possession be executed under oath and include affidavits showing the following: 

(1) A showing of the basis of the plaintiff's claim and that the plaintiff is entitled to possession of the property claimed.  If the basis of the plaintiff's claim is a written instrument, a copy of the instrument shall be attached. 

(2) A showing that the property is wrongfully detained by the defendant, of the manner in which the defendant came into possession of the property, and, according to the best knowledge, information, and belief of the plaintiff, of the reason for the detention. 

(3) A particular description of the property and a statement of its value. 

(4) A statement, according to the best knowledge, information, and belief of the plaintiff, of the location of the property and, if the property, or some part of it, is within a private place which may have to be entered to take possession, a showing that there is probable cause to believe that such property is located there. 

(5) A statement that the property has not been taken for a tax, assessment, or fine, pursuant to a statute; or seized under an execution against the property of the plaintiff; or, if so seized, that it is by statute exempt from such seizure. 

Code Civ. Proc. § 512.060 permits the Court to issue a writ of possession when the Court finds the following: (1) the plaintiff has established the probable validity of the plaintiff’s claim to possession of the property and (2) the undertaking requirements of section 515.010 are satisfied.  As a remedy of law rather than of equity, a writ of possession is to issue without regard to other considerations, such as a balancing of hardships or preservation of the status quo.        

Code Civ. Proc. § 515.010 provides: “The undertaking shall be in an amount not less than twice the value of¿the¿defendant’s interest in the property or in a greater amount.”  “Before issuance of a writ of attachment … the plaintiff shall file an undertaking to pay the defendant any amount the defendant may recover for any wrongful attachment by the plaintiff in the action.” (C.C.P. § 489.210.)  But when a defendant does not have any interest in the property, Code Civ. Proc. § 515.010(b) permits the Court to waive the requirement of the plaintiffs’ undertaking and set an undertaking for the defendant to keep possession or regain possession. 

Under Code of Civil Procedure § 512.040, the “Notice of Application and Hearing” (Mandatory Form CD-110) shall inform the defendant of all of the following: 

(a) the time and place of the hearing for Plaintiff's application for a writ of possession; 

(b) the writ will be issued if the court finds that Plaintiff’s claim is probably valid and the other requirements for issuing the writ are established, and the Court will not decide whether the claim is actually valid, as that decision will be made in a subsequent     proceeding; 

(c) a defendant desiring to oppose issuance of the writ must file either a declaration providing evidence sufficient to defeat the application or an undertaking to stay the delivery of the property in accordance with Code of Civil Procedure section 515.020; and 

(d) a statement as follows: “If you believe the plaintiff may not be entitled to possession of the property claimed, you may wish to seek the advice of an attorney. Such attorney should be consulted promptly so that he may assist you before the time set for the hearing.” 

DISCUSSION 

Plaintiff’s notice of application does not inform Defendant of information required under § 512.040 subdv. (b), (c) and (d) and is accordingly procedurally defective.  (Winston v. Saxon, 2020 Cal. Super. LEXIS 57834 (denying application for writ of possession where plaintiff failed to comply with specific notice requirements of § 512.040).)   

CONCLUSION 

Based on the foregoing, the Court DENIES without prejudice Plaintiff’s application for a writ of possession.  

 

IT IS SO ORDERED. 

 

DATED: September 20, 2023 ___________________________ 

Edward B. Moreton, Jr. 

Judge of the Superior Court